Determining Work Made for Hire: A Practical Checklist

Intellectual Property > Copyright | Published 3 August 2025 - Updated 8 December 2025 | UpLaw - uplaw.us

A single statutory phrase decides whether the person who made a work owns it or is a legal stranger to it. This checklist tells you which side of that line your facts fall on, and how to secure ownership even when the "work for hire" label does not hold.

Keywords: work made for hire, 17 U.S.C. § 101, 17 U.S.C. § 201(b), CCNV v. Reid, Aymes v. Bonelli, scope of employment, nine enumerated categories, specially commissioned work, copyright assignment, § 204(a), independent contractor, termination of transfer, instance-and-expense test, copyright authorship

Why This Determination Decides Everything Downstream

Copyright's baseline rule is short and human: the copyright in a work "vests initially in the author or authors of the work," and the author is the person who conceived the protectable expression and fixed it in a tangible medium (17 U.S.C. § 201(a)). The work-made-for-hire doctrine is the exception that swallows the rule in vast swaths of commercial life. When a work qualifies, "the employer or other person for whom the work was prepared is considered the author for purposes of this title" and owns every exclusive right from the moment of creation, unless the parties have signed a writing to the contrary (17 U.S.C. § 201(b)). The statute does not say the employer owns the author's rights. It says the employer is the author. That legal fiction is the engine of the whole doctrine, and it drives consequences that surprise people years later.

Three of those consequences are worth stating up front, because they explain why this determination is worth slowing down for.

First, enforcement. An entity that is not the owner of a copyright cannot sue for its infringement, and no certificate of registration, license, or confident recital in a contract can manufacture ownership that the law did not confer. A company that assumes it owns a freelancer's logo, sues a copycat, and then learns in discovery that the freelancer never signed anything has not merely lost a case; it has advertised to the world that its most important brand asset belongs to someone else.

Second, duration. A work made for hire runs on a different clock. Instead of life of the author plus seventy years, it endures for "95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first" (17 U.S.C. § 302(c)). For a corporate author with no mortal lifespan, that fixed term is the only term there is.

Third, and most subtly, termination. The 1976 Act gives human authors and their heirs a non-waivable right to claw back copyright grants decades later (17 U.S.C. §§ 203, 304(c)-(d)). That right belongs to authors. If a work is made for hire, the human who made it was never the author, so there is no termination right to exercise, ever. This is the deepest reason the assignment-versus-work-for-hire distinction matters, and the one creators most often sign away without noticing.

Getting the determination right is therefore not a formality. It fixes who can sue, how long the rights last, and whether the creator or their family can someday demand the copyright back. For the doctrinal setting in which this question sits, see UpLaw's complete overview of copyright law and the plain-language copyright FAQs.

How to Use This Checklist

There are exactly two doorways into work-for-hire status, and they are defined in the two numbered clauses of the statutory definition (17 U.S.C. § 101):

1. Route One (the employee route): "a work prepared by an employee within the scope of his or her employment"; or
2. Route Two (the commissioned route): "a work specially ordered or commissioned" that falls within one of nine enumerated categories, and for which the parties "expressly agree in a written instrument signed by them" that the work is made for hire.

The routes are mutually exclusive. If the creator is a common-law employee acting within the scope of employment, clause (1) applies and the nine categories are irrelevant. If the creator is an independent contractor, clause (1) is unavailable no matter how much control the hiring party exercised, and the work can be a work made for hire only by satisfying every element of clause (2). A hiring party does not get to pick the more convenient theory; the facts pick it.

Because clause (2) fails so often and so quietly, a disciplined practice never relies on work-for-hire status alone. It pairs the analysis with a present assignment of copyright — the belt-and-suspenders clause examined in Phase 4 — so that ownership lands with the hiring party whether or not the "work for hire" label survives scrutiny. Work through the phases in order. Each phase closes with a checklist and a "Traps" note flagging the mistakes that recur in real files.

Phase 1 - Frame the Question: Whose Work, and When Was It Made?

Start by naming the parties precisely and pinning down the date of creation, because both dictate which test applies.

• [ ] State the default. Copyright vests in the author (17 U.S.C. § 201(a)). Everything that follows is an argument for departing from that default.
• [ ] Identify the creator and the relationship. Is the human who fixed the expression a payroll employee, or an independent contractor, consultant, agency, or vendor? The label the parties used ("consultant," "contractor," "team member") is a data point, not the answer.
• [ ] Identify the hiring party. Is it the entity that will need to own and enforce the copyright, or an individual, or a not-yet-formed startup? Pre-formation work by founders is a classic gap (see Phase 4).
• [ ] Pin the date of creation. Works created on or after January 1, 1978 are governed by the 1976 Act's two-clause definition. Works created before 1978 are governed by the 1909 Act's judge-made "instance and expense" test, which is broader and can sweep in independent-contractor works that would fail today's clause (2) (see Phase 5).
• [ ] Note whether more than one person contributed. If two or more authors intended their contributions to merge into a unitary whole, you may have a joint work with its own ownership rules, layered on top of any work-for-hire question.

Worked hypothetical. Lumen Robotics, Inc. commissions a freelance illustrator, Marisol Vance, to design a single standalone company logo in 2025, and separately asks its salaried in-house UX designer to draft the onboarding screens for the company app during ordinary work hours. Two creators, two very different analyses. Vance is a contractor producing a logo — a work that, as we will see, fits none of the nine categories, so Route Two is closed to it. The staff designer is an employee producing screens within the scope of her job, so Route One is wide open. Same company, same week, opposite results. Frame each work separately; do not answer for the whole engagement at once.

Traps. The most expensive error in this phase is answering the wrong question — treating "we paid for it" or "we controlled it" as if either fact, standing alone, resolved ownership. Neither does. Payment is consideration for whatever rights the contract actually transferred, and control is only one factor in only one of the two routes. Confirm ownership before you register it, license it, pledge it as collateral, bequeath it, or sue on it.

Phase 2 - Route One: An Employee Acting Within the Scope of Employment

Route One has two independent requirements, and both must hold. The creator must be a common-law employee, and the work must have been created within the scope of employment. Miss either and the work is not made for hire under clause (1).

Step 2A - Is the Creator a Common-Law Employee? The Reid Agency Test

The Copyright Act does not define "employee," so in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), a unanimous Supreme Court held that the term carries its settled common-law meaning drawn from the general law of agency. The Court rejected the more expansive tests some circuits had used — actual control over the work, or the mere right to control — and directed courts instead to weigh the multifactor agency standard reflected in the Restatement (Second) of Agency § 220(2). Reid, 490 U.S. at 740-41, 751-52. The factors include:

• the hiring party's right to control the manner and means by which the product is accomplished;
• the skill required for the work;
• the source of the instrumentalities and tools used to create it;
• the location where the work is performed;
• the duration of the relationship between the parties;
• whether the hiring party has the right to assign additional projects to the creator;
• the creator's discretion over when and how long to work;
• the method of payment (salaried versus by the job);
• whether the work is part of the regular business of the hiring party;
• the provision of employee benefits; and
• the tax treatment of the creator.

No single factor is dispositive, and the list is not exhaustive. But courts have learned that some factors carry far more weight than others. In Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992), the Second Circuit isolated a set of factors that "will almost always be relevant and should be given more weight in the analysis": the right to control, the level of skill, the provision of benefits, the tax treatment, and whether the hiring party may assign additional projects. The practical significance is that the paperwork of the relationship — how the worker was paid, taxed, and benefited — often tells you the answer faster than a philosophical inquiry into who controlled the mouse. A creator who receives a W-2, participates in the health plan and 401(k), and has payroll taxes withheld is almost certainly an employee. A creator who invoices, gets a Form 1099, buys their own equipment, and pays self-employment tax almost certainly is not.

Reid itself is the cautionary tale. The Community for Creative Non-Violence hired the sculptor James Earl Reid to create a Nativity-style tableau of homeless figures, "Third World America," for a holiday display. CCNV directed the concept, paid for materials, and set the deadline. But Reid worked in his own studio, supplied his own tools, was paid a lump sum for the job, received no benefits, had no taxes withheld, and was retained for a discrete two-month project requiring sculptural skill. The Court held he was an independent contractor. The sculpture was therefore not a work made for hire, and CCNV could not claim sole authorship — however much it had controlled the artistic vision. Control over the creative result is not the test; the totality of the agency relationship is.

Informality does not defeat employee status, and this trips up startups constantly. In JustMed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010), a small company treated a software developer casually — no formal payroll at first, payment partly in stock, remote work on his own computer — yet the Ninth Circuit found he was an employee whose code was a work made for hire, emphasizing the ongoing, integral, benefits-bearing character of the relationship over the ragged paperwork. The lesson cuts both ways: the label on the engagement letter does not control, and a genuinely embedded team member can be an employee even when nobody bothered to run payroll properly.

• [ ] Apply the full Reid factor list to the facts, resisting the temptation to stop at the first factor that favors your client.
• [ ] Give extra weight to the Aymes core factors: right to control, skill, benefits, tax treatment, and the right to assign more work.
• [ ] Gather the documentary proof that usually decides it: W-2 versus 1099, benefits enrollment, tax withholding, and how the worker was paid.
• [ ] Treat a genuinely embedded, ongoing team member as a likely employee even if the paperwork is sloppy (JustMed).

Traps. Do not confuse creative control with employment. CCNV controlled the sculpture's message down to the pose and lost. And do not assume that calling someone a "1099 contractor" ends the inquiry in the other direction — misclassification for tax purposes and misclassification for copyright purposes are separate questions with separate consequences. If your engagement really is an independent-contractor relationship, skip to Route Two and, more importantly, to the assignment in Phase 4.

Step 2B - Was the Work Created Within the Scope of Employment?

Employee status alone is not enough. Clause (1) also requires that the work be prepared "within the scope of his or her employment." Courts fill that undefined phrase with agency law too, applying the three-part test of the Restatement (Second) of Agency § 228: the conduct is within the scope of employment when it (a) is of the kind the employee is employed to perform, (b) occurs substantially within the authorized time and space limits, and (c) is actuated, at least in part, by a purpose to serve the employer. See U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012); Avtec Systems, Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994) (quoting § 228); Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 634-35 (2d Cir. 2004).

The doctrine matters most at the edges, where an employee creates something related to but outside the assigned job. Avtec involved an engineer whose orbital-simulation program grew out of his employment but was refined on his own time for his own purposes; the "purpose to serve the employer" and "time and space" prongs became the battleground. Martha Graham went the other way on its facts: the famed choreographer's dances, created while she led and was employed by her own dance center, were largely works made for hire belonging to the center rather than to her estate — a result that shocked the dance world and shows how far the scope-of-employment fiction reaches when a creative principal is also an employee of the institution she built.

Two recurring wrinkles deserve their own flag.

The academic exception. Whether a professor's scholarship, lectures, and course materials belong to the university is genuinely unsettled. A literal reading of the 1976 Act would make most faculty writing a work made for hire, because professors are salaried employees writing within the scope of their jobs. Two influential Seventh Circuit opinions resisted that reading, invoking a long-standing "teacher exception" rooted in academic tradition: Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987) (Easterbrook, J.), and Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988) (Posner, J.). Both are dicta, both predate a definitive resolution, and university IP policies now try to fill the gap by contract. If your facts involve a professor, a research scientist, or a physician-academic, read the institution's IP policy and any appointment letter before assuming anything.

The moonlighting employee. Software written at 2 a.m. on a personal laptop, unrelated to the employer's business and never intended to serve it, generally falls outside the scope of employment even for a full-time employee. The "kind of work employed to perform" and "purpose to serve" prongs both cut against the employer. This is where side projects, open-source contributions, and startups-inside-a-day-job get litigated.

• [ ] Confirm the work is of the kind the employee was hired to produce.
• [ ] Confirm it was created substantially within authorized time and space (not exclusively — the test tolerates some spillover, but wholesale off-hours, off-topic creation is vulnerable).
• [ ] Confirm at least a partial purpose to serve the employer.
• [ ] For faculty and researchers, read the institutional IP policy; do not rely on the raw statute.
• [ ] For moonlighting or side projects, presume the work is outside scope and secure it by written assignment if the company wants it.

Traps. The scope-of-employment inquiry is where an otherwise clean "our employee made it" theory collapses. An employer that wants to own an employee's off-hours or off-topic creations must say so in an invention- and copyright-assignment agreement; the work-for-hire doctrine will not reach that far on its own. For the drafting mechanics and enforceability limits, see UpLaw's guide to employee invention assignment agreements.

Phase 3 - Route Two: The Specially Commissioned Work

When the creator is an independent contractor, Route One is gone. The only path to work-for-hire status is clause (2), and it has three hard requirements, each of which independently can sink the analysis.

Requirement A - The Work Must Fall Within One of the Nine Enumerated Categories

Congress did not make every commissioned work eligible. It listed exactly nine categories, and a commissioned work outside the list can never be a work made for hire, regardless of the contract (17 U.S.C. § 101). The nine are:

1. a contribution to a collective work (an article in a magazine, a chapter in an anthology, an entry in an encyclopedia);
2. a part of a motion picture or other audiovisual work;
3. a translation;
4. a supplementary work — a work prepared as a secondary adjunct to another author's work "for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of" it, such as forewords, afterwords, illustrations, maps, charts, tables, editorial notes, musical arrangements, bibliographies, appendices, and indexes;
5. a compilation;
6. an instructional text — a literary, pictorial, or graphic work prepared for use in systematic instructional activities;
7. a test;
8. answer material for a test; and
9. an atlas.

Read that list against the deliverables businesses actually commission and the trap becomes obvious. A standalone logo is not on the list. A single photograph commissioned on its own is not on the list. A custom software application is not on the list. A standalone sound recording is not on the list. Naming any of these a "work made for hire" in a contract does not make it one, because the category gate is jurisdictional to clause (2), not waivable by agreement.

The list also rewards precision, because context can move a work in or out. A musical arrangement or a piece of score commissioned for a film can qualify as "part of a motion picture or other audiovisual work" (category 2) — the same notes that would fail as a standalone sound recording succeed as a component of an audiovisual work. An illustration commissioned as the cover of a magazine can be "a contribution to a collective work" (category 1) or a "supplementary work" (category 4). Do not ask only "what medium is this?"; ask "what is this work in relation to the larger project it serves?"

The sound-recording cautionary tale. Sound recordings are conspicuously absent from the nine categories, and that absence is deliberate history, not oversight. In late 1999, the recording industry inserted a rider into an unrelated omnibus bill that quietly added "as a sound recording" to the list of commissioned categories, which would have let labels treat recording artists' masters as works made for hire — and thereby strip artists of the termination rights they were counting on to recapture their catalogs in the 2010s and beyond. When artists discovered the change, the backlash was ferocious. Congress reversed course in the Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106-379, repealing the addition and expressly providing that the deletion should not be read as evidence about how sound recordings were treated before or after. The upshot for practice today: a commissioned sound recording is not categorically a work made for hire, and a label's ownership of a master usually rests on assignment and the "within scope of employment" question, not on clause (2). If your matter touches recorded music, work through UpLaw's checklist on registering copyright in songs and recordings and the guide to music licensing in the streaming age.

Requirement B - A Signed Written Instrument Expressly Saying "Work Made for Hire"

Clause (2) requires that "the parties expressly agree in a written instrument signed by them" that the work is a work made for hire. Three points of rigor:

• The writing must use the concept expressly. A generic assignment or a "the company owns all deliverables" clause is not the same as a work-for-hire agreement, and courts will not imply the magic status from silence.
• The writing must be signed by both parties (or their authorized agents). A purchase order the contractor never signed will not do.
• Timing matters, and the circuits are not perfectly aligned. The best practice — and the safer rule — is that the signed work-for-hire agreement should exist before the work is created, so that the parties truly "agree" that the not-yet-made work will be for hire. Some courts have allowed a writing that confirms a pre-existing oral understanding to be signed shortly afterward, while others insist the agreement precede creation. Do not litigate the edge; paper the deal first, then create.

Requirement C - Genuine Commission

The work must have been "specially ordered or commissioned" — created at the hiring party's request for its intended use, not an off-the-shelf work the contractor happened to have lying around and later sold. In practice this element is rarely contested when Requirements A and B are met, but it matters for pre-existing materials a contractor folds into a deliverable; those are typically licensed or assigned, not "commissioned."

Worked hypothetical. Cobalt Press commissions three works for a new illustrated field guide to coastal birds: (i) freelance writer Idris Okafor drafts the chapter text; (ii) freelance illustrator Priya Nair paints forty standalone watercolor plates; and (iii) freelance cartographer Sam Lindqvist prepares the range maps. Cobalt uses one signed contract calling all three "works made for hire." Which sticks? Okafor's chapters are "contributions to a collective work" — Route Two works, assuming the writing is proper. Lindqvist's maps are "supplementary works" (and, arguably, part of a "compilation" or "atlas"), so they likely qualify too. Nair's forty watercolors are the problem: paintings sold to illustrate a book are best characterized as either standalone pictorial works or, at most, supplementary works, and courts have been skeptical of shoehorning fine-art illustration into the categories. If a court declines to treat Nair's plates as a qualifying category, the "work for hire" recital fails for her work — and Cobalt owns nothing in the plates unless the same contract also contains a present assignment. It should. Which is the entire point of Phase 4.

• [ ] Confirm the deliverable actually fits one of the nine categories, and characterize it by its relationship to the larger project, not just its medium.
• [ ] Confirm a signed, written instrument expressly designates the work as "made for hire."
• [ ] Confirm both parties signed, and that the agreement was in place before creation.
• [ ] For standalone logos, single photographs, custom software, or standalone sound recordings, assume Route Two is unavailable and rely on the assignment backstop.
• [ ] Separately address any pre-existing materials the contractor incorporates.

Traps. This is the clause that swallows careless contracts. The words "work made for hire" are load-bearing only when the deliverable is one of the nine categories; on everything else they are decorative. The fix is never to argue harder about the categories — it is to add the assignment.

Phase 4 - When Work-for-Hire Fails, Secure a Written Assignment

The single most valuable habit in this area is to stop treating "work made for hire" as the primary ownership mechanism and start treating it as a bonus. The primary mechanism is a present assignment of copyright in a signed writing, because a transfer of copyright ownership "is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent" (17 U.S.C. § 204(a)). An assignment works whether or not the work-for-hire label survives, whether or not the creator is an employee, and whether or not the deliverable fits the nine categories.

The industry-standard solution is a single belt-and-suspenders clause that tries work-for-hire first and assignment second:

The Work is a "work made for hire" as defined in 17 U.S.C. § 101, and Company is the author and owner of all copyright in it. To the extent the Work does not qualify as a work made for hire, or to the extent Company is not deemed the author for any reason, Creator hereby irrevocably assigns to Company all right, title, and interest in and to the Work and all intellectual property rights therein, throughout the world, in perpetuity.

Two drafting refinements separate a good clause from a defective one.

Use "hereby assigns," not "agrees to assign." The difference is the gap between a present transfer and a mere promise to transfer later. A present assignment ("hereby assigns") conveys title the instant the work exists. A promissory assignment ("agrees to assign") is only a contract to convey, which can require a further act, can be defeated by an intervening transfer to a bona fide purchaser, and can create nasty chain-of-title problems. The patent analogue made this famous in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011), where competing "agree to assign" and "hereby assign" clauses decided who owned an invention. The copyright drafting lesson is identical. UpLaw's article on employee invention assignment agreements unpacks the present-assignment language and the state carve-out statutes in detail.

Close the founder gap. Startups routinely have founders and early contributors build the first product — the logo, the codebase, the pitch deck's copy — before the company legally exists, or before anyone signed anything. Copyright in that pre-incorporation work belongs to the individuals, not to the entity that later raises money on the strength of it. Every incorporation should include a confirmatory technology- and IP-assignment from each founder to the company, and diligence counsel will ask for exactly that. See UpLaw's founder's incorporation checklist and the broader IP transactions toolkit.

• [ ] Obtain a present assignment of copyright, signed by the creator, satisfying § 204(a).
• [ ] Draft it as belt-and-suspenders: work made for hire first, irrevocable present assignment as the fallback.
• [ ] Use "hereby irrevocably assigns," never "agrees to assign."
• [ ] Have every founder and pre-formation contributor assign their work to the company at incorporation.
• [ ] Confirm the signer had authority to convey (individual creator, or an entity's authorized officer, or the creator's own upstream sub-contractors).

Traps. An assignment signed by a contractor who did not actually own the rights — because the contractor used sub-contractors who never assigned to it — conveys nothing. Trace the chain of title all the way down to every human hand that touched the work. And remember that even a perfect assignment does not defeat the author's later statutory termination right (Phase 7); assignment secures present ownership, not permanent immunity from recapture.

Phase 5 - Special Rule for Pre-1978 Works: The Instance-and-Expense Test

If the work was created before January 1, 1978, forget the two-clause definition. The 1909 Copyright Act governs, and it never limited work-for-hire status to nine categories or required a signed writing. Under the judge-made instance-and-expense test, a commissioned work — including one by an independent contractor — was a work made for hire if it was created (a) at the instance of the hiring party (at its motivating request) and (b) at its expense (with the hiring party bearing the financial risk, typically through payment regardless of the work's success). The hiring party's right to supervise or control, even if unexercised, weighed heavily. See Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013); Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995); Markham Concepts, Inc. v. Hasbro, Inc., 355 F. Supp. 3d 119, 127-28 (D.R.I. 2019), aff'd, 1 F.4th 74 (1st Cir. 2021).

This matters intensely for the mid-century catalogs that are now hitting their termination windows. In Kirby, the Second Circuit held that Jack Kirby's foundational Marvel artwork from the early 1960s was made at Marvel's instance and expense and therefore was work for hire — which meant Kirby's heirs had no § 304 termination right to recapture it (the dispute later settled). The freelance page-rate arrangement that looked like independent contracting under modern clause (2) was still work for hire under the older, broader 1909 standard. Markham Concepts applied the same framework to the board game "The Game of Life," holding the designer's contribution a work for hire made at the sponsor's instance and expense, and confirming that a fixed royalty does not, by itself, defeat the "expense" prong.

• [ ] Confirm the creation date; if before 1978, apply the 1909 Act's instance-and-expense test, not the 1976 Act's two clauses.
• [ ] Analyze whether the work was created at the hiring party's motivating instance.
• [ ] Analyze whether the hiring party bore the expense and financial risk.
• [ ] Weigh the hiring party's right to supervise or control, exercised or not.
• [ ] Map the result onto any live termination window (Phase 7), because instance-and-expense status usually forecloses termination.

Traps. Do not import modern clause (2) intuitions into a pre-1978 problem. A freelancer paid by the page in 1962 can be the "author" of a work made for hire even though the identical arrangement in 2025 would produce an independent contractor whose logo or illustration fits no statutory category. The vintage of the work changes the test.

Phase 6 - Record the Consequences for Registration and Chain of Title

The determination you just made has to be reflected accurately on the registration record, and the difference between a true work made for hire and an assigned work is not cosmetic.

• [ ] True work made for hire. Name the employer or commissioning party as both the author and the claimant, and check the "work made for hire" box on the application. The individual creator need not be, and generally should not be, listed as an author. Record the corporate author's name and, if used, a fictitious or trade name.
• [ ] Assigned work (work-for-hire failed or was never claimed). The human creator remains the author; the assignee is listed as the copyright claimant, supported by a brief transfer statement describing how the claimant obtained ownership (for example, "By written assignment"). Do not check the work-for-hire box.
• [ ] Get the authorship statement right. A registration that names a commissioning party as "author" when the work was not actually a work made for hire is simply inaccurate. Because a knowing inclusion of materially inaccurate information can expose the registration to invalidation under 17 U.S.C. § 411(b), accuracy here is a litigation asset, not a clerical detail.

The scienter standard for that inaccuracy comes from Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022), which held that § 411(b)'s safe harbor forgives mistakes of law as well as of fact — a registrant does not lose the registration for an inaccuracy it did not know was inaccurate, even if the error was a legal misunderstanding. That is genuine breathing room for a good-faith registrant who mischaracterized a subtle work-for-hire question. It is not a license to check the work-for-hire box on a hunch. An accused infringer who can show the registrant knew the work was not for hire and said otherwise to the Copyright Office has a live invalidity argument. For the mechanics of the application itself, UpLaw's copyright registration checklist and the comprehensive registration roadmap and resource library walk through every field, and medium-specific guidance appears in the checklists for software and photographs.

• [ ] Confirm the copyright term you are recording. A work made for hire runs 95 years from first publication or 120 years from creation, whichever ends first (17 U.S.C. § 302(c)); an assigned work runs on the human author's life plus seventy years (§ 302(a)). The two clocks can differ by decades for the same underlying creation.
• [ ] Reconcile the authorship statement with any copyright notice you use on published copies; see UpLaw's copyright notice checklist.

Traps. An entity that lists itself as "author" of a work it does not actually own for hire has manufactured a mismatch between the registration and reality — the human creator still owns the work absent a valid assignment, and the entity cannot enforce a copyright it does not hold. Fix the ownership first, then register to match it.

Phase 7 - Account for the Termination-Right Consequence

Here is the deepest and least appreciated reason the assignment-versus-work-for-hire choice matters. The 1976 Act gives authors and their statutory heirs an inalienable right to terminate copyright grants and recapture the rights, exercisable within specified five-year windows decades after the grant. For post-1977 grants by the author, the mechanism is 17 U.S.C. § 203, and the window generally opens 35 years after execution of the grant. For pre-1978 grants in their renewal term, the mechanism is § 304(c) and (d), keyed to 56 and 75 years after the copyright was originally secured. The right cannot be waived, and any "agreement to the contrary" is unenforceable — which is precisely the point Congress had in mind, to give creators a second bite at works they had signed away cheaply before anyone knew what they were worth.

Now the pivot: termination belongs to authors, and a work made for hire has no human author to hold it. If a work is genuinely made for hire, the creator was never the "author," so there is no § 203 or § 304 right to exercise — not by the creator, not by their children, not ever. The rights are the hiring party's, permanently. If instead the creator retained authorship and merely assigned the copyright, the assignment is fully terminable, and the author (or the statutory successors) can recapture the copyright when the window opens, notwithstanding the most emphatic "in perpetuity" language in the grant.

That single distinction has produced some of the highest-stakes copyright litigation in American history. The heirs of the creators of Superman spent years litigating whether early grants were terminable — a fight that turns on characterizing decades-old work and the transfers around it. The songwriter Victor Willis recaptured his share of the Village People catalog, including "Y.M.C.A.," by serving a § 203 notice, in litigation that confirmed a single co-author may terminate his own separate grant. And the reason the Kirby heirs lost their bid for Marvel's characters (Phase 5) is that the work was adjudged made for hire — no authorship, no termination. UpLaw tells several of these stories in Who Owns the Superhero? Landmark Copyright and Trademark Battles, and the procedural mechanics of serving and perfecting a notice are in the copyright renewal and termination checklist.

• [ ] Recognize that a true work made for hire forecloses any termination right; an assignment leaves one alive.
• [ ] For a creator who might want the work back someday (recording artists, illustrators, authors, songwriters), counsel toward an assignment rather than a work-for-hire designation, and preserve the termination interest.
• [ ] For a hiring party that wants durable, un-recapturable ownership, work-for-hire status (where legitimately available) is stronger than assignment — but do not manufacture it where the facts do not support it.
• [ ] Inventory dormant termination interests in estate planning and IP diligence; an unexercised § 203 or § 304 right is a real, valuable, and easily overlooked asset.

Traps. Creators sign whatever is put in front of them, rarely noticing that "work made for hire" and "assignment" are not synonyms. For a client on the creator side, the label is the ballgame: it is the difference between a permanent transfer and a transfer that can be undone in a generation.

Edge Cases and Recurring Complications

Moral rights and VARA. The Visual Artists Rights Act grants certain authors of fine art the moral rights of attribution and integrity (17 U.S.C. § 106A). But the definition of a "work of visual art" in § 101 excludes works made for hire. So a sculptor whose piece is a genuine work made for hire has no VARA rights in it, while the same sculptor who merely assigned the copyright retains those personal moral rights. Another consequence riding on the same determination.

Joint works layered on top. When several people contribute copyrightable expression intending it to merge into a unitary whole, the result may be a joint work whose authors are co-owners with independent rights to license (subject to accounting). Work-for-hire status can convert one collaborator's contribution into the employer's, changing who the co-authors are. Analyze authorship of each contribution before declaring a joint work.

Contributions inside a collective work. A magazine, anthology, or journal is a collective work, and the pieces inside it carry their own copyrights. Absent a work-for-hire agreement or assignment, the publisher acquires only the limited privilege of reproducing each contribution as part of that particular collective work and later revisions of it (17 U.S.C. § 201(c)) — not full ownership. The Supreme Court's decision in New York Times Co. v. Tasini, 533 U.S. 483 (2001), held that reusing freelance articles in standalone electronic databases exceeded that privilege. UpLaw covers the allocation in Contributions to a Collective Work. If a publisher wants more than the § 201(c) privilege, it needs a proper work-for-hire agreement (category 1 is available) or an assignment.

Software, specifically. Custom-developed software is the most common real-world trap, because it fits none of the nine categories yet is almost always commissioned from contractors or built by employees. If the developers are employees writing within scope, Route One works and the code is the company's. If they are contractors, Route Two fails on the category gate, and ownership depends entirely on a present assignment. This is why every software development agreement should carry the belt-and-suspenders clause, and why open-source components require separate clearance. See UpLaw's articles on how the law protects software and registering copyright in software and source code.

AI-assisted works. Work-for-hire analysis presupposes a human author whose rights are being reallocated. Where a machine, not a human, generated the expression, the Copyright Office's current position is that the machine-generated portions are not authored at all and cannot be registered, which means there is no copyright for anyone — employer or contractor — to own for hire. The question of what human contribution suffices, and how it interacts with commissioning arrangements, is unsettled and fast-moving; see Generative AI on Trial.

Derivative work confusion. Owning the copyright in a commissioned work is not the same as owning the right to make derivatives of a pre-existing work the contractor licensed in. Separate the newly created expression (governed by work-for-hire or assignment) from any incorporated third-party or pre-existing material (governed by license). UpLaw's derivative works article explains how to register the new material without overclaiming the old.

Common Mistakes, at a Glance

• Assuming a freelancer's deliverable is a work made for hire "because we paid for it." Payment buys whatever rights the contract transferred — nothing more.
• Relying on a "work made for hire" clause for a deliverable outside the nine categories (logo, single photo, custom app, standalone recording). The recital is decorative there.
• Confusing creative control with employment. CCNV controlled the sculpture and still lost.
• Skipping the fallback assignment, leaving ownership stranded with the contractor.
• Using "agrees to assign" instead of "hereby assigns," creating a mere promise rather than a present transfer.
• Forgetting founders' pre-incorporation work, which belongs to the founders until assigned.
• Naming the commissioning party as "author" on a registration when work-for-hire status fails, risking a § 411(b) problem.
• Overlooking that a true work made for hire permanently forfeits the creator's termination right — a feature for hiring parties, a bug for creators who did not understand what they signed.
• Applying the modern nine-category test to a pre-1978 work that is governed by the broader instance-and-expense standard.

A Worked Example, Start to Finish

Harborview Interactive, a small game studio organized in 2024, is finishing its debut title. Trace the ownership of four assets and the whole framework snaps into focus.

1. The engine code, written by two salaried, benefited, W-2 programmers during work hours. Route One: they are common-law employees under Reid, the code is squarely within the scope of their employment under § 228, and it is a work made for hire. Harborview is the author and owner. Register with Harborview as author and claimant, work-for-hire box checked; the individual programmers need not be named.

2. The orchestral score, commissioned from an independent composer under a signed contract calling it a "work made for hire." Because the music is written for the game's audiovisual work, it plausibly fits category 2 ("part of a motion picture or other audiovisual work"), so Route Two may hold. But Harborview's counsel does not stop there — the contract also contains the belt-and-suspenders present assignment, so even if a court balks at category 2, Harborview owns the score by assignment. Note for the composer: had she wanted a future recapture right, she should have negotiated an assignment (terminable) rather than accepting work-for-hire status (not terminable).

3. The standalone cover illustration, painted by a freelance artist and used for the store page and marketing. It fits no category — a standalone pictorial work is not on the list — so the "work made for hire" words in the contract are inert. Ownership rides entirely on the present assignment. Harborview registers the illustration with the artist as author and Harborview as claimant by written assignment, work-for-hire box unchecked. Getting that authorship line right protects the registration under Unicolors.

4. A logo one of the founders designed in 2023, before Harborview existed. Copyright belonged to the founder personally. At incorporation, the founder signed a technology-assignment conveying it to the company. Without that document, Harborview would be marketing a game under a logo it did not own — the exact founder gap that derails financings and acquisitions.

Four assets, three different ownership theories, one unifying discipline: never let ownership depend on the work-for-hire label alone. Pair it with a present assignment, register to match reality, and note the termination consequences for anyone who might want their work back.

Primary and Secondary Authority

Statutes. 17 U.S.C. § 101 (definitions of "work made for hire," the nine enumerated categories, "collective work," "supplementary work," and the work-for-hire exclusion from "work of visual art"); § 201(a)-(b) (initial ownership; work made for hire); § 201(c) (contributions to collective works); § 204(a) (signed-writing requirement for transfers); § 302(a), (c) (copyright term, including 95/120 for works made for hire); §§ 203, 304(c)-(d) (statutory termination of transfers); § 411(b) (inaccurate registration information); § 106A (moral rights under VARA). Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106-379 (repealing the short-lived sound-recording category). Copyright Act of 1909 (governing works created before January 1, 1978).

Cases. Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992); U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009 (9th Cir. 2012); Avtec Systems, Inc. v. Peiffer, 21 F.3d 568 (4th Cir. 1994); Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004); JustMed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010); Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987); Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988); Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013); Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995); Markham Concepts, Inc. v. Hasbro, Inc., 355 F. Supp. 3d 119 (D.R.I. 2019), aff'd, 1 F.4th 74 (1st Cir. 2021); Gary Friedrich Enterprises, LLC v. Marvel Characters, Inc., 716 F.3d 302 (2d Cir. 2013); New York Times Co. v. Tasini, 533 U.S. 483 (2001); Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022); Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011).

Secondary and administrative. Restatement (Second) of Agency §§ 220(2), 228; U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (3d ed.); U.S. Copyright Office, Circular 9, Works Made for Hire; Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.03.

Related UpLaw Resources

Related Guides

• Copyright Law: A Complete Overview
• Registering Copyright in Photographs: A Photographer's Guide

Related Checklists

• Copyright Registration: A Practical Checklist
• Copyright Renewal and Termination of Transfer: A Practical Checklist
• Copyright Registration for Software: A Practical Checklist
• Copyright Registration for Photographs: A Practical Checklist
• Copyright Registration for Songs and Recordings: A Practical Checklist
• Copyright Notice: A Practical Checklist
• Incorporating a Startup the Right Way: A Founder's Legal Checklist

Related Toolkits

• Registering Copyrights with the U.S. Copyright Office: A Roadmap and Resource Library
• The IP Transactions Toolkit: A Roadmap for Licensing, Assignments, and Diligence

Related Articles

• Employee Invention Assignment Agreements: Securing Clean Title Across Jurisdictions
• Contributions to a Collective Work: Who Owns the Pieces Inside a Magazine, Anthology, or Journal
• Who Owns the Superhero? Landmark Copyright and Trademark Battles
• How the Law Protects Software: Copyright, Patents, Trade Secrets, and Contract Rights
• Registering Copyright in Software and Source Code
• Music Licensing in the Streaming Age: Mechanical Royalties, the MLC, and Direct Deals
• Registering Derivative Works: Protecting What You Added Without Overclaiming
• Copyright FAQs: Plain-Language Answers to the Questions People Ask Most
• Generative AI on Trial: Copyright Infringement Claims After the New York Times and Getty Suits

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This checklist is general information from UpLaw (uplaw.us), not legal advice. Work-for-hire and ownership determinations are intensely fact-specific and jurisdiction-sensitive; confirm the analysis against current authority and consult qualified counsel before relying on it for a particular matter.